A “pirate king” who changed his name, started his career on financial crimes, and claimed his “permissionless innovation” was a better alternative for artists and creators than the existing system.

Kim Dotcom in 2012? Or, James Frederick Willetts in the 1900s?

At the turn of the 20th century, before recorded music gained hold, sheet music was king. And, analogous to now, illicit reprinting of sheet music dogged music publishers and songwriters.

In England, James Frederick Willetts was one of the leading pirates. Also known as “John Fisher”, or, simply, “the colonel” — and formerly convicted for embezzlement — his operation distributed and sold tens of thousands of copies of other peoples’ works without permission. 1Adrian Johns, Piracy: The Intellectual Property Wars from Gutenberg to Gates,pg. 343, et. seq. (Univ Chicago Press 2009). In 1904, the British Parliament held hearings on the problem of music piracy, and, in a perhaps unprecedented move, Willetts appeared to testify.

Fair warning: what you’re about to hear may sound familiar.

Early on, Parliament asked:

I believe you have some suggestions to make to the committee, first of all, with regard to the cause of piracy?

Willetts answers, music is too expensive:

The cause of piracy, I say, is the extortionate price charged to the public by the publishers of copyright music—a price which I consider is altogether beyond the reach of the general public, by whom there is a great and pressing demand—and a price which is out of all reason considering the cost of production, even after making the most handsome allowance for the labour of the author and composer. I consider that a man really has no copyright in the gifts conferred on him by Providence, these being conferred upon him for the general good of mankind. The cause also is a general agitation for the reduction in the price of music.

Later, Willetts claims that songwriters need not charge so much because the cost of producing songs, ie, the cost of paper, has gone down.

And that leads you on to your next head—the cost of production ?—I think so. Under that head I may say that the progress of invention and the fact that the price of paper has gone down to such an extent, enable publishers to produce music at very much cheaper prices than they could years ago.

Willetts even waves the flag of “musical education” — the 1900’s version of, perhaps, culture, or free speech. He, or course, is a champion of “musical education” while copyright owners are cast as its opponents.

There is a ring there: music is the same price today as it was then; and what is more — the publishers come to Parliament and ask Parliament to protect them, and to police them. What for? To stop the musical education of the country. That is what I think it means, to really stop the musical education of this country.

The next head is, “cheaper music will find legitimate employment for more people” ?—I say, under that head, that if the cheaper editions of copyright music were sold, there would be no market or demand for the sale of pirated music, and I do not think there would be any pirates, for the reason that they would not risk, even in the present state of the law, having the pieces seized from them which are pirated copies, whilst they could go to the publisher and buy a cheap edition. I may tell you, gentlemen, when I met Mr. Day, I suggested to him the advisability of having a cheap edition, if even it was disfigured, to a certain extent, with advertisements, and so let these street markets and hawkers and others have a cheaper edition for the working classes. It would still be the means of keeping thousands of men in employment who would otherwise be idle and who are now selling what they term pirated and other cheap music in the streets; and it would still be the means of finding them a living by allowing them to have cheaper editions of music, with advertisements if you like, not good enough, perhaps, for gentlemen in a position to pay the 1st 4d. or the 2s., or the 4s. if they felt so disposed, would not care to have their children playing on the piano, in company; but still good enough for the working classes. There would be a greater number of people interested in the sales also of this copyright music and there would be no pirates, that is what it amounts to, and what is more, I take it, the people would not buy the pirated edition if they can get the cheaper copyright edition.

Later, Willetts proposes a compulsory license:

Now your last head is as to proposals for the alteration of the law. Have you some proposals to make with regard to suggested alterations?—There is one suggestion. I should think it would be a good plan—a plan which has recently occurred to me—that authors and composers should let any publisher publish their compositions who feels disposed, or is in a position, to pay royalty, not confining the publication to one publisher, but giving the right to any publisher who approaches an author or composer and who wants to publish a piece; he should have the power to do it, providing that the composer gets the recognised royalty for the piece. The composer should be protected by Act of Parliament, I take it, but there should be no royalty, no protection, as implied in the Copyright Act—I mean for the printer or the publisher; he should not have a copyright. There is no copyright in the mere fact that I can print some handbills as well as any other printer. And. therefore, I should have the right to go to any composer to demand from him, if I am a respectable mail or representing a respectable firm, the right to publish his piece.

In one exchange, Willetts was forced to acknowledge that taking away a creator’s choice doesn’t work:

Do you think that the author or composer is to be himself the judge of what is best for his own interest or that Parliament should step in and say that this and that and the other thing should be done—you see my point?— I think I see your point.

A great many of your proposals were directed to this point, that you and those like you, publishers, should step in and pay a royalty to the author, which you consider more to his interest than the method at present adopted?—That is so.

The author is not to be a free agent or to allow his property to be dealt with in the way in which it is given by statute ?—If the statute says that it should be competent to go and offer that, then that at once brings up the publishers’ ring who say, “Now we are a ring to keep everybody outside.”

Would you kindly answer my question?—What is it?

My question is this: you propose to take away from the author the complete control over the management of his own work and to give it to the publisher who approaches him and they say, ” We are going to do this under certain statutory provisions” ?—Unless the author could show any special reason why the publishers should not do it, and as long as they pay him the royalty it does not matter to him and it will be for the benefit of the public at large.

You take away from him the liberty of managing his own business as he pleases ?—Yes.

Are you aware that that experiment has already been tried in Canada by Act of Parliament and that there it was a complete failure ?—No, I was not aware of it.

And that there was a statutory royalty enacted in Canada, and it failed ?—I did not know that.

Perhaps, most tellingly, is the following exchange:

Your evidence has been directed to a change in the law as it affects the present question of piracy—you think that the law is a bad law ?—So far as I have read it.

But you said you had not read it ?—Well, so far as I have read, not the identical Act, but certain extracts from it.

In other words, over a century ago, a man who did not understand copyright law proclaimed that his bypassing of it benefitted the public, without any evidence.

Since the dawn of copyright, creators have heard the same song and dance: they are enemies of free speech and innovation. If only they would shut up and let others profit off their labor, the world would be better off.

But the Willetts and Dotcoms of the world are wrong, and the fact remains; few remember Willetts; more remember Sousa, Stravinsky, Flight of the Bumblebee, or Meet me in St. Louis, Louis. In three hundred years, the most progress of the useful arts and sciences has come from those who compensate artists and creators. It’s not a terribly difficult concept: a framework that lets creators share in the value they create is one where everyone wins. A framework that allows companies to internalize all the profits from other people’s works is one that doesn’t sustain expression, one where the public ultimately loses out. And we should remember that, no matter how many “pirate kings” surface to tell us otherwise.

8 Comments

There is almost no data in your article to corroborate your last claims. It would be interesting to see it. Simply listing two countries and a verbal exchange doesn’t come close to providing a complete enough picture to come to a conclusion. I recently read another article which claimed that Germany’s rapid industrial expansion and scientific learning was due to lax/non-existent copyright laws:

As an artist myself, I am most interested in the effects of copyright including the immaterial aspects such as the “greater good”. I realize that not every copyright breaker is a leech and I also know that our current system here in the US favors the big companies over the smaller artists. It’s been that way for a long time, and with copyright getting extended each time the copyright on Mickey Mouse is about to expire, the situation only gets worse. Everyone stands on the shoulders of the people who have gone before them and at some point we need to recognize this.

On the other hand I would love to produce my art (music, photography) and make a profit so that I can do it more. Being a “starving artist” doesn’t really have many upsides for me. 🙂

While Terry doesn’t prove that point here, he can, and I’m sure he will. The study referenced in Spiegel is hogwash – it compares the UK to Germany, and they were obviously different in many ways. (Just for starters: The UK was much more united earlier on, and the simple fact that it industrialized first made progress in other nations quicker since they had a model to follow.) Most important, when you’re talking about “scientific learning,” that wouldn’t have been covered by copyright anyway! Copyright covers a particular expression of information, not the underlying information itself. Scientific information in books can always be summarized or paraphrased; in this case, that would have been necessary, since it would have to be translated to German! With that in mind, I can’t understand how this study withstood any kind of peer review: Whether you favor copyright or not, it proves absolutely nothing.

I’m not down on studies in general, and I’m not an unthinking supporter of maximalist copyright. But this study really doesn’t make any sense. Again, it compared a country that had long had a centralized government to one where that was only beginning to emerge. And it measured scientific advances, which would never be covered by copyright anyway.

There is almost no data in your article to corroborate your last claims. It would be interesting to see it. Simply listing two countries and a verbal exchange doesn’t come close to providing a complete enough picture to come to a conclusion. I recently read another article which claimed that Germany’s rapid industrial expansion and scientific learning was due to lax/non-existent copyright laws

I haven’t seen the study itself, so I can only comment on the article you linked to, and, as Rob points out above, it is difficult to draw parallels between the pre-industrial Germanic states and England at the time, or industrial countries today.

But the article does suggest that, despite the lack of modern copyright laws in that area during that time, a stable market for literature and publishing had emerged. According to the article:

The trade in technical literature was so strong that publishers constantly worried about having a large enough supply, and this situation gave even the less talented scientific authors a good bargaining position in relation to publishers. Many professors supplemented their salaries with substantial additional income from the publication of handbooks and informational brochures.

I would argue that that supports my claim: authors were getting paid to write, and that writing helped speed the industrialization of the Germanic states.

Mickey Mouse is a trademark, copyright has absolutely nothing to do with statutes regarding trademarks or service marks. There are no term limits on trade or service marks. As long as a trademark or service mark is in regular use it may remain valid in perpetuity. In future please refrain from conflating trademarks with copyrights as it only serves to muddle issues concerning copyright for the uninformed.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.